Affirmed and Memorandum Opinion filed October 26 , 2021

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00258

- CR

KAILA ALEXINE NELSON , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 208th District Court

Harris County, Texas Trial Court C ause No. 1577901

MEMORANDUM OPINION
A jury found Kaila A lexine Nelson guilty of the offense of capital murder,
and the trial court assessed her punishment at life imprisonment without parole

. Tex. Penal Code Ann. § § 19.03 (a)(2) (capital murder)
, 12.31(b ) (pun i shment for capital felony). In two issues, appellant contends that the trial court r eversibly
erred by not sua sponte instruct ing the jury to consider whether two witn esses who testified at trial were accomplice witnesses. C oncl ud ing that the two w i t nesse s

were not accomplic e wi tnesses, we affirm.2 I. B ACKGROUND

In late 2017 , the complainant
, Dequan Anderson , arrived at a Dollar General
store in north Houston for his shift

. When he ar rived, he was assi gned the tas k of taking money from the st ore register for de posit in a bank. Approximately $2
, 800

was placed inside a money bag, and th en the money bag was placed inside a

company

- br anded tote ba g. As complainant got into his vehicle, an assailant ran to

t he veh icle and attempted to grab the bag of money . Co m plainant pulled the bag away and attempted to dri ve away

. The assailant followed complainant’s vehicle and shot at the vehicle, until compl ainant crashed

. The assailant ran over to the
vehicle after it crashed, b roke the driver’s window and took the tote b ag

. Complainant was shot several times and died of his injuries

. The assailant left the scene and got inside a nother vehicle parked outside an adjacent apartment comp lex. Security foo tage from the ap ar tment complex and eyewitness testimony le d police to t he “ getaway ” vehicle and Kevin Berry , the person who was leasing the vehicle . Berry , in turn, informed po lice that he was paid to drive two women to the ap artment complex next to the D ollar General that day. The address at which Berry picked up the two wo m en corresponded to the same apartment complex at which Dinesha Jackson, an assistant manager at the
Dollar General store , l ived

. J ackson was a childhood friend of appellant ’ s girlfri end, Jamesha Robin s on. Appellant and Robinson, though residents o f Atlan t a, were visiting Houston at the
time of the murder and staying with Ja ckson

. Police also learned that Jackson was
not scheduled to work on December 17 but volunteer ed to work . As th e assistant

manage r of th e store, she assigned compl aina nt to make the dep o sit even though another employee had planned to handle the dep osit.
The murder weapon

— a gun

— was never lo cated. Multiple eyewitnesses3

described the shooter as a “Hispanic male.” However, appellant ’ s fingerprint was found on complainant’s vehicle
, and appel l ant was further linked to the murder through her connection to Jackson as well as her cell

- phone records

. The
cel l

- phone records not only placed appellant, Ro binson
, an d Berry i n the general proxim ity of the Dollar General store at the time of the r o bbery and murder , but the
record s reflect exte nsive text communication be tween Jackson and appellant in the
hour before the robbery and murder . Jackson was charged as a co

- de fendant

. Appellant was arr ested i n Atlanta approximately two months later. At tri al in
F ebruary 2020 , the State called Berry and Robinson to testify against appellant.
Both Berry and Robinson testified pursuant to an immunity agreement

. II. A NALYSIS Appellan t acknowledges that she did not ob ject to the lack of an accomplice

- witness instruc tion i n the jury charge with respect to the testimony of Berry and Robinson

. However, appellant asserts that the trial court shou ld have
inst ructed the jury sua sponte becau se the evidence raised a fa ct is sue as to whether Berry and Robinson were accomplic es. Sh e contends that the trial court ’ s error egregiously harmed her because “ rational jurors would have found the State ’ s case signi fi cantly less persuasive had they been t old that the accomplices ’ t estim ony could not be accepted without corroboration. ”

A. S t and ar d of Review

We must review “all alleged jury

- charge error

. . . regardless of preservation in the trial court.” Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
W hen analyzing claim ed ju ry charge error, we utilize a two

- pronged test. Ngo v. Sta t e , 175 S.W.3d 738, 743

– 44 (Tex. Crim. App. 2005); Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc). The first prong requires us to4

determine wheth er error exists. See Ngo , 1 75 S

. W.3d at 743. If no error is found, then the analysis en ds; however, if charge error is found, the error is analyzed for
harm. See id

. The degree of harm necessary to warrant a reversal depends on whet her the accused objected to the jury charge, and thereby preserved the error. Ngo , 1 75
S.W. 3d at 743 ; Alm anza , 686 S.W.2d at 171 . If the error was preserved by a timely objection, we review the record to determine if th e error caused the accused “some
har m.” Ngo , 175 S.W.3d at 743; Almanza , 686 S.W.2d at 171. However, if no objection was lodged, as a ppellant conced es here, we review the unpreserved jury charge error for egregious harm. Almanza , 686 S.W.2d at 171. Egregio us harm is actual, rather than theor etical, and must be of such a nature that it deprived the
accused of a fair an d impar tial tr ial or otherwise vit ally affected the accused ’ s defensive theory at trial. See Villarreal v. State , 453 S.W.3d 429, 433 (Tex. Cr im. App. 2015); Cosio v. State , 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). “Egregious harm is a ‘high and difficu lt stan dard’ t o meet, and such a
d etermination must be ‘borne out by the trial record.’ ” Villarreal , 453 S.W.3d at
433 ( quoting Reeves v. Stat e , 420 S.W.3d 812, 816 (Tex. Crim. A pp. 2013) ) . In making an eg regious

- harm determination, we examine : (1) the enti re cha rge; (2 ) the state of the e vidence, including contested issues and the weight of the evidence; (3) arguments of counsel; and (4) any othe r relevant information revealed by the record of the trial as a whole. See Allen v. State , 253 S.W.3d 260, 264 (T ex. Cr im. App . 2008) ; Almanza , 68 6 S.W.2 d at 171

. However, be cause we find no jury

- charge err or in this case, we n eed not perform the egregious

- harm analysis

. B. Applicable Law

Under Code of Criminal Procedure article 38.14 , a criminal c onviction may5

not be based on the testi mony of an accom p lic e wi tness unless the testimony is “corrob orated by other evidence tending to connect the defendant with the offense committed.” Tex. Code Crim. Proc. Ann. art . 38.14. T he purpose of the accomplice

- witness instruction is to remind the ju ry that it canno t us e th e accomplice ’ s testimony to convict t he defendant unless there also exists some

non

- accomplice testimony or evidence tying the defendant to the offense. Cocke v.
State , 201 S.W.3d 744, 747 (Tex. Crim. App. 2006).

A witness is an accomplice only if he o r s he participate s i n th e crime with the defendant, taking “a n affirmative act

. . . to assist in the commission of the [crime]” before, during, or after the commission of the crime, with the required culpable mental state for the crime. Drue ry v. Sta te , 225 S.W.3d 491, 49 8 (Tex. Crim. App. 2007) . Mere presence a t the scene of the crime does not render a
witness an accomplice

. Id

. at 498; see Cocke , 201 S.W.3d at 748 . Nor is a witness

an accomplice merely because he knew of the crime and failed to disc lose it or

even con cea led it. Druery , 22 5 S.W.3d at 498. There must exist evidence sufficient
to connect the witness to the criminal offense as a “blameworthy participant.”
Cocke , 201 S.W.3d at 748 (quoting Blake v. State , 971 S.W.2d 451, 455 (Tex.
Crim. A pp. 1998) ).

“A witn ess may be an accompl ice either as a matter of law or as a matter of fact; the evidence in a case determines what jury instruction , if any, needs to be given.” Cocke , 201 S.W.3d at 747. “Whether an accomplice

- witness instruction is justi fied, therefore, re qui res a case

- specifi c and fact

- specific inq uiry.” Id

. at 748. “When the evidence clearly shows (i.e., there is no doubt) that a witness is an accomplice as a matter of law, the trial judge must instruct the jury accordingly.”
Smith v. S tate , 332 S.W.3d 42 5, 439 (Tex. Crim. Ap p. 2011). A witness is an accomplic e as a matter of law in the following situations: (1) the witness has been6

charged with the same offense as the defendant or a lesser

- included offense; (2) if the State charges a wi tness with the same offens e as the defendant or a lesser included of that offense, but dismisses the ch arges in exchange for the witness ’ s testimony against the defendant; and (3) when the evidence is uncontradicted or so

one

- sided that no reasonable juror could conclude tha t the w itness was not an accomplice. Ash v. State , 533 S.W.3d 878, 886 (Tex. Crim. App. 2 017). W hen the
evidence is c onflicting and it remains unclear whether the witness i s an accomplice , t he trial court should a llow the jury to decide the issue as a matter of
f act under instructions defining the term “ accomplice .” Druer y , 225 S.W.3d at
498

– 99; Paredes v. S tate , 129 S.W.3d 530, 536 (Tex. Crim. App. 2004) . Finally,
when the evidence clearly s hows that a witness is not an accomplice , the t rial judge is not obliged to instruct the jury on the accomplice

- witness rule as a matter of law
or fact. Smith , 332 S.W .3d at 440.

There is no indication in the rec ord that Berry a nd R obinson were ever charged with the same offense as appellant

. In her br iefing on appeal, appellan t does not contend that Berry and Robinson were accom plices as a matter of law,
and instea d argue s the evi dence was conflicting and raised the issue of whether Berry and Robinson were accomplices as a matter of fact

. See Ash , 533 S. W.3d at
886 ( witness is accomplice as matter of law i f no reasonable juror could conclude
that witness was not accomplice )

. C. Kevin Berry was not an accomplice
Appellant argues that the following evidenc e at trial raised a fac t issue of
whether Berry was an accomplice as a matter of fact : ( 1) Berry texted with appellant about plans to drive her and wait for her to pick up so me money; ( 2 ) Berry saw appellant was carrying a gun when he picked her up; ( 3) Berry
waited in the ve h icle and moved the vehicle into the adjacent apartment co mplex7

after hearing gun shots; ( 4) Berry took appellant and R o binson to the bus later that day; and ( 5) Berry deleted tex t messages between himself and appel lant. Appellant
also cites to the fact th at Berry had a prior robbery conv iction. However, appellant engages in little discussion of how this evidence qualifies Berry as an accomplice.

On t he day of the murder , appellant contacted Berry via text and asked if he
could drive her somewhe re that day . She indicated that it might invo lve waiting
around and tha t she would pay him extra for th at

. The text messages
, as well as Berry’s testimony
, refl ect that appellant needed to be picked up by 12:30 p

. m

. so she could be somewhere by 1:00 p

. m. She told Berry via text that she could not be
late. I n her text messages , appe llan t neither indicate d where she needed to be driven, nor ma de any statement that would indicate she planned to commit a crime

. Berry later picked up appellant and R obinson and drove them to an apartment complex adjacent to Dolla r General. Appellant got o ut , leaving Berry and
Robinson in the vehicle. She walked to the Dollar General. Berry ha d initially parked o n the street, but then moved his vehicle to avoid attenti on

. He neve r saw the commission of the crime . He recalls t hat ap pellant returned to the ve hicle out of
breath and carrying a bag of money. Berry drove appellant and Robinson back to the pickup locati on , and then later that day drove the pair to the Greyhou nd station so they could catch a bus back to Atlanta.

Give n that an “ accomplice is someone who participates with the defendant before, during, or after the commission of a crime a nd acts with the required culpable mental state
, ” t here is no evidence, nor does appellant cite to any, that Berry participated with th e requ ired culpable state. See D ruery , 225 S.W.3d at 4 98.
Be rry’s testimony
, supported by the text messages in the re cor d, do es not reflect any knowledge on his part that he was participating or assisting in a robbery or a
murder. All the evidence at trial estab lished that Berry knew

— bef ore dropping8

appellant outs ide the apartment complex adjacent to the Dollar General

— that

app ellant needed to pick up some money and she had a gun

. Given Berry’s testimony that he had previously and uneventful ly driven appell ant to Wal

- Mart to
run an errand when appellant had her gun , the fact that appellant again brought her

gun with her on the day of the murder does not autom atically make Berry an accomplice or impu te to Berry knowledge that appellant planned t o rob the Doll a r General. T here i s no evidence Berry was awa re he was participa ting in, soliciting, encouraging
, or a i ding a robbery or murder.
Though Ber ry deleted text messages at appellant’s request and drove her to
the bus station later that day to leave town
, th ese acts do not make him an accomplice

. Se e id. at 499

– 500 (conclud i ng that two witnesses in murder

p rosecution were not accomplices for purposes of accomplice

- witness rule whe n one assisted i n disposal of decedent ’ s body and gun and both we re paid with cash
stolen from decedent)

. Be cause the evidence does no t raise a fact issue of whet her
B erry was an accomplice to the off en s e of capital murder (or any lesser

- included charges ) , we conclude that the trial court did not err in omitting an accomplice

witness ins truction regarding Berry from the jury ch arge

. We o verru le appellant ’s issue 1

. D. J a m esha Robinson was not an accomplice
Appellant also argues that the evidence r aised the q u estion of whether she
was entitled to an accom plice

- witness instruction as to the te stimony of Robinson

. She asserts that the following evidence at trial raised a fact issue of whether
Robinson was an accomplice as a matter of fact : (1) Robi nso n was the g irlfriend of appellant; (2) Robinson was also staying with Jackson; (3) Robinson rode to Dollar
General with h er; and (4) and Jackson wa s her best friend.9

There is no e vidence in the record that Robinson engaged in any affirmative act to promote the robber y or murder. The evidence cited by appellant only reflects
that Robinson was with her be fore the commission of the crimes and rode with her

to Do llar Gener al

. But that is not evidence of any culpable mental state on Robinson’s part. Though Robins on may h ave known of or suspected appellant’s plans, that fact alone does not make Robinson an accomplice. See Druer y , 2 25
S.W.3d at 500. She may also have suspected or learned t hat appellant committed a crime when appellant returned with blood on her arm, screami ng “ I shot. ” However, t he evidence c ited by appellant does not establish any conflict i n t he
evidence or doubt a s to whether there was any affirmative act on the part of
Robinson to a ssist in the commission of the charged offense. Id . at 499 ; s ee Paredes , 129 S.W.3d at 537

– 38 ( “ T here is no evidence that P riscilla was in any way involved in t he planning of the murder s. Although she may have s uspected that foul play would oc cur when Torres arrived at her hou se, there i s no evidence suggesting that she assisted in the preparation for or planning of the murder s.

. . . There is no conflicting evid ence or doubt on the ques tion of Priscilla ’ s compli city
in the murders. ” ). Therefor e , w e conclude that the evidence at trial did not raise a fact issue regarding whether Robinson was an accomplice

. We overrule appellant ’s second issue.10 III. C ONCLUSION

We aff irm the judgment of the t rial court as challenged o n appeal.

/s/ Charles A. Spain Justice

Pan el con sists of J usti c e s Jewell, Spain
, and Wilson

. Do No t Pub lish

— T ex . R. App. P. 47.2(b)

.